Perez, Osvaldo Miguel

• Court: Court of Criminal Appeals of Texas
• Decided: July 1, 2015
• Docket: PD-0231-15
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

NO. PD-0231-15

OSVALDO MIGUEL PEREZ, Appellant

v.

THE STATE OF TEXAS

ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW FROM THE EIGHTH COURT OF APPEALS EL PASO COUNTY

Per curiam.

OPINION

Appellant was convicted of unlawful possession of cocaine with intent to deliver,

unlawful possession of a firearm, and unlawful possession of body armor by a felon. He

appealed the trial court’s denial of his motion to suppress.

The search warrant issued for appellant’s residence was based upon an affidavit

that contained a false statement. In his motion to suppress, appellant argued that without

the false statement, there was insufficient probable cause to support the warrant. The PEREZ, PD-0231-15 page 2

State admitted to the false statement, but argued that even without it, there was sufficient

probable cause based upon the other information described in the affidavit: a confidential

informant’s tip and a dog sniff and alert which took place on the front porch. The trial

court denied the suppression motion.

The court of appeals upheld the trial court’s ruling, and stated that “[b]ecause the

trained drug dog’s positive reaction to drugs in the residence provided sufficient probable

cause to issue a search warrant without the officer’s false statement, we find no reversible

error in the judge’s failure to grant the motion.” Perez v. State, No. 08-13-00024-CR, slip

op. at 2-3 (Tex. App.–El Paso Dec. 19, 2014). Appellant filed a motion for rehearing,

arguing for the first time that the dog sniff was illegal and therefore could not be used to

help establish probable cause, citing McClintock v. State, 444 S.W.3d 15 (Tex. Crim.

App. 2014)(remanding to court of appeals to decide whether good faith reliance on case

law existing prior to Florida v. Jardines, 133 S. Ct. 1409 (2013), would bar application of

exclusionary rule). The court of appeals denied the motion.

Appellant has filed a petition for discretionary review of this decision pointing to

Jardines, in which the Supreme Court held that the government’s warrantless use of drug-

sniffing dogs on the front porch of a home constituted an illegal search in violation of the

Fourth Amendment. Appellant argues that the court of appeals erred in failing to at least

address Jardines.

Appellant’s notice of appeal was filed the month before Jardines was issued, and PEREZ, PD-0231-15 page 3

his brief was filed after that decision. The State’s brief argued that Appellant waived any

reliance on Jardines. The court of appeals’ opinion was delivered nearly 21 months later

and it failed to mention Jardines. Given that Jardines was decided well in advance of the

court of appeals’ opinion and that Jardines was pointed to by the State in its reply to the

petition and by appellant on rehearing (indirectly through his citation to McClintock), the

court of appeals may have taken Jardines into consideration prior to denying appellant’s

rehearing motion. Nonetheless, we hesitate to address Jardines in the absence of a court

of appeals’ decision expressly addressing its application. Accordingly, we summarily

grant appellant’s petition for discretionary review, vacate the judgment of the Court of

Appeals, and remand this case to the Court of Appeals to consider the application, if any,

of Jardines, in the first instance.

Delivered: July 1, 2015 Do Not Publish